Cape Judge President John Hlophe’s appeal to the Constitutional Court could result in a recusal of the judges who laid the complaint against him.
The Supreme Court of Appeal (SCA) ruling against him could then possibly stand as the final word on the matter, a constitutional law expert explained on Wednesday.
Professor Pierre de Vos, constitutional law lecturer at the University of the Western Cape, said Hlophe is free to appeal to the Constitutional Court, whose judges lodged a complaint against him for allegedly trying to influence colleagues, Judges Chris Jafta and Bess Nkabinde in a judgement relating to ANC president Jacob Zuma.
The Judicial Service Commission (JSC) was to have heard the complaint last year.
This was, however, put on hold when Hlophe sought a ruling in the High Court in Johannesburg that the Constitutional Court had been unfair to make the complaint without letting him be heard first, and that they had violated his dignity by making the complaint public.
He also wanted the hearings stopped.
The court agreed with him on the first complaint, but said the JSC hearing should go ahead and so the matter went to the SCA.
On Tuesday a full bench of the SCA found that the judges did not act unlawfully when they made the complaint to the JSC without giving Hlophe an opportunity to be heard.
They were also not obliged by law to keep the complaint secret.
Hlophe’s lawyer Vuyani Ngalwana told the JSC hearing on Wednesday that Hlophe intended taking the matter to the Constitutional Court, the highest court in the land.
De Vos said: ”If he appeals, then obviously he is also free to bring [an application for] recusal of the judges. If the judges are recused, then the ruling of the SCA will stand.
”That would be the highest court able to make a judgement on the matter.”
If he does not make an application for the judges to be recused, they would be in a difficult position judging something that concerns them.
Hlophe might consider this as an option to embarrass the judges.
According to the Constitution, it is not possible to replace judges of the Constitutional Court unless they are absent from duties, or there is a vacancy, De Vos said.
”So, you cannot appoint acting judges,” he said.
De Vos said that while it may appear that the Constitution did not anticipate a matter such as Hlophe’s, it is actually ”very sound law”.
If it were possible to have acting judges, the minister of justice and the chief justice would have to consult on who to appoint, and this would be problematic.
Chief Justice Pius Langa heads the court that Hlophe has lodged the complaint against, and Justice Minister Enver Surty recused himself from the JSC hearings.
Speaking on the sidelines of the hearing, JSC spokesperson Marumo Moerane said this was because Surty felt he had already tried to help resolve the dispute.
De Vos said a similar situation has arisen in the United States in a matter where judges had shares in a company and the matter was brought to court, a recusal ensued, there was no quorum and so the lower court’s ruling stood.
De Vos said in South Africa judges are usually only recused on request.
”But it is only logical that they may recuse themselves if they feel there is a conflict of interest,” he said.
”Usually it is not a problem as they would just appoint another judge to hear a case, but this is a completely different matter as all 11 judges of the Constitutional Court sit as a ‘unit’ and cannot be replaced.”
Meanwhile, the hearings adjourned for Hlophe’s lawyer to take instructions from Hlophe on whether the hearing can continue without him while he recovers from a ”mischievous bout of influenza”.
Ngalwana was not happy with having to consult with Hlophe while he was ill, but agreed to do so and the hearing would resume at 2pm to hear whether they could continue.
Ngalwana insisted that his only instruction was for a postponement, which some of the JSC committee members fear may be used by Hlophe to get an interdict against the proceedings. — Sapa